Down the EU's Right-to-Be-Forgotten Rabbit Hole

Implementation of the EU's right-to-be-forgotten policy appears to have hit some snags, as privacy regulators tussle with search engines over how they handle link removals. The right to be forgotten is the foundation of a directive allowing citizens to have links to "inadequate, irrelevant or no longer relevant, or excessive" information about them removed from search results.

Telecom regulators from each European Union member state, together with the Article 29 Working Party -- a group comprised of a data protection authority representative from each state, the European Data Protection Supervisor, and the European Commission -- have invited search engines to a meeting next week, according to a Thursday report in The Wall Street Journal.

Microsoft, which just started fielding link removal requests to Bing, plans to attend. It is not clear if Google or Yahoo will be there, although both companies have said they will cooperate with privacy officials.

Effectiveness In Doubt

A number of issues have cropped up over how Google has dealt requests spawned by the new policy since it started taking them in May. It began to
remove certain links from search results last month.

Google's decision to remove search results only for localized versions of its search engine -- for instance, its UK, France and German sites -- and not for the worldwide search engine puts the effectiveness of the link-removal approach in doubt, according to CNIL, France's privacy body.

Google has been criticized for the way it informs websites when it removes links from search results, since it's possible to pinpoint the person who made the request as a result. Google also has faced claims of censorship for removing links to newspaper articles.

"The core concern for the EU right now seems to be the scope of the implementation of the requests," Derek E. Bambauer, associate professor of law at the University of Arizona's
James E. Rogers College of Law, told TechNewsWorld.

Google's decision to remove links from results in country-specific versions of its search engine, but not from google.com, is problematic, he noted.

"The EU would obviously like its court decisions to be given the broadest possible effect," said Bambauer, while "Google would like to follow those decisions in the EU, but not in the U.S."

Progress Report

Google's response to the EU's demands amounts to "a good compromise," Bambauer continued.

"The EU and the U.S. have starkly different views on the balance between privacy versus freedom of speech. It's important for the EU to be as respectful of U.S. values as it is for the U.S. and firms located here to respect EU views. European views on privacy aren't universal, and it's critical for the EU to avoid overstepping its bounds. The .com versus .fr / .de compromise, while imperfect, tries to find a middle ground," he reasoned.

As for next week's powwow, "I think this qualifies as a 'progress report' meeting, in that the EU wants to know whether companies are properly complying and what they are doing to accomplish the removals," said Charles King, principal at Pund-IT.

"An interesting thing about the EU order was its essentially imperious 'make it so' nature. The companies involved weren't given a lot of guidance as to how to accomplish what was ordered," he told TechNewsWorld.

For its part, Google recently noted that it's had just two months to figure out the challenge of determining how to handle requests and which links it should omit from searches. Considering the fact that it has received more than 70,000 requests related to 250,000 Web pages so far, the task already is proving difficult.

Google employees must check each request manually, and since there have been
alleged abuses of the system -- including removal requests from a pedophile, a disgraced politician, and a doctor with poor patient reviews -- each must be diligently examined.

Advisory Council

Google has established an expert advisory council to guide it in determining which content to remove links to as the process evolves.

"The key concern for search engines handling link removals is the sheer volume of requests," said Keith Hylton, a law professor at
Boston University.

"The volume may become unmanageable for the major search engines," he told TechNewsWorld.

"I believe that the company is doing what it can," said Pund-IT's King.

"This situation isn't entirely new, in that Google and others have complied in the past with requests and demands to remove certain material from search results -- scrubbing Tibet-related material in China, for example. Scrubbing material related to individuals would seem to be a less complex process, but some information is likely to be impossible to expunge entirely -- say, photos that are copied from a public site, then shared privately. Still, from what I can see, Google is making a good faith effort to comply," he observed.

'Playing the Issue'

"It's my view that Google has been playing the issue so that it appears free speech is being seriously jeopardized by censorship," said John Simpson, privacy project director at
Consumer Watchdog.

"The right to be forgotten should be implemented and can be implemented in a way that strikes the right balance between privacy and the right to know. Google is doing its best to demonstrate how the RTBF won't work, rather than figuring out how to do it so that the right balance between privacy and the right to know is struck," he told TechNewsWorld.

"Perhaps the EU data protection authorities can get the Internet giant back on track at next week's meeting," Simpson added. "It could well be that many of the decisions about what links are appropriate to be removed ... should be reviewed by data protection authorities. At the very least the authorities could offer more explicit and transparent guidelines."

Meanwhile, Bing's new
takedown request form is perhaps more stringent than Google's. It requires complainants to state if they're a public figure, detail the reasons for the request, and prove to Bing that they are not trying to stymie free expression. As with Google's request form, applicants are required to provide identification and links to each page they wish to block.

Lost Cause?

Despite all the energy and resources being expended, the efforts to hide irrelevant information related to EU residents may be a lost cause.

A new website, Hidden From Google, aims to track and publish "censored links" that Google has removed. It focuses particularly on links to news stories.

Founder Afaq Tariq conceived of the list as a way to archive censorship on the Internet. "It is up to the reader to decide whether our liberties are being upheld or violated by the recent rulings by the EU," reads a statement on the site.

Because Hidden From Google publishes the removed links along with relevant search terms, the site turns up in Google search results on those terms. If John Smith had a link to a story about his company removed from results returned on a search of his name, for instance, the results nevertheless would include Hidden From Google, which would supply the link. Hidden From Google would appear in the results because it contained Smith's name -- and it would not have been on the list of links Smith wanted removed from his search results.

Since Hidden From Google is based in the U.S., there's little the EU can do to thwart it.

"Enforcing the EU judgment in the U.S. would be impossible due to our First Amendment and the SPEECH Act, which prohibits enforcement of foreign judgments that violate the First Amendment. It was one of the first laws passed under and signed by President Obama," Arizona's Bambauer noted.

"The EU could try to bring action against the site's founders if they traveled to an EU member state, or it could seek to have the site filtered or censored within its borders, but that's all," he maintained.

"Hidden From Google brings up a nice tension in the EU court's decision: It requires the removal of search results, but not the underlying documents or information," Bambauer added.

"So, the data is out there -- it's just harder to find. The question is whether EU privacy regulators will bother with the whack-a-mole problem of going after every site that highlights the delisted results -- which would largely be a waste of time -- or whether they'll only go after engines with any sizable market share," he noted.

Unless HFG starts getting more traffic, which would be surprising," Bambauer said, "it presents little risk of any substantial effect on the EU decision."

Kris Holt is a writer and editor based in Montreal. He has written for the Daily Dot, The Daily Beast, and PolicyMic, among others. He's Scottish, so would prefer if no one used the word "soccer" in his company. You can connect with Kris on
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